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Toronto plastic bag ban: Can the city actually do this?

Answers to some of the many lingering questions on council's surprise decision to ban plastic shopping bags as of Jan. 1.

City Councillor David Shiner mocks Giorgio Mammoliti's signature "thumbs down" voting gesture after his proposal to ban single-use bags in Toronto retail stores was voted in by Toronto City Council. (LUCAS OLENIUK / TORONTO STAR) | Order this photo

By Daniel DaleUrban Affairs Reporter

Thu., June 7, 2012

Mayor Rob Ford is fuming. Environmentalists are applauding. Retailers are scrambling. And just about everybody is trying to figure lots of things out.

In its most surprising major decision in recent memory, city council voted out of the blue on Wednesday to ban plastic shopping bags as of Jan. 1. Below, answers to some of the many lingering questions.

Does the city actually have the authority to ban plastic bags?

Ford believes a judge will quash the ban if someone files a lawsuit. “We’re going to be dead in court,” he said Thursday. But that is far from certain.

“A bag ban may in fact be legally supportable,” city solicitor Anna Kinastowski said. “But we haven’t looked into it yet.”

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The province’s City of Toronto Act says the city has “broad powers” to “determine what is in the public interest for the city” and “respond to the needs of the city.” The Municipal Act says cities have the power to pass bylaws to address their “economic, social and environmental well-being.”

A pesticide ban imposed by a Quebec town was upheld by Canada’s Supreme Court in 2001, and Toronto’s pesticide ban was upheld by the Ontario Court of Appeal in 2005.

“The courts — both the Supreme Court of Canada and the Ontario Court of Appeal — have been pretty clear that they will allow municipalities to pass bylaws in the area of environmental protection as long as there is some evidence that they are going to be preventing environmental degradation,” said municipal lawyer Ron Kanter, a former councillor.

The Municipal Act says courts shall not quash any bylaw “passed in good faith.” The breakneck speed with which the ban was proposed and approved may pose a legal issue.

“One of the markers of ‘bad faith’ would be the failure to give all stakeholders notice of the proposed bylaw and to provide them the opportunity for input,” Kanter said. “In this case, I think there is a judicial, rather than statutory, requirement to have an opportunity for input from the folks who provide plastic bags.”

Since the actual bylaw has not yet been approved, only a council motion, the city could still hold public meetings or otherwise allow for corporate feedback. But spokesperson Wynna Brown said “it’s premature to speculate on next steps at this point.”

What, exactly, are retailers going to do when the ban comes in?

Big companies either aren’t sure or aren’t saying. “Given the unexpected turn of events with respect to the ban, we are looking into the implications of the decision across all the lines of our business,” said a spokesperson for Canadian Tire.

“We’re weighing all the options,” said a spokesperson for Future Shop.

Some stores will give away paper bags — but many big chains will probably only offer reusable bags for sale. Loblaw has gone “bagless” at eight Canadian stores, including one in Milton, where customers can buy bins or reusable bags.

“Reusable bags are something that many of our members offer in their stores right now, and I think that you would see a migration towards options such as that,” said Retail Council of Canada senior vice-president David Wilkes.

City staff must still write a full-fledged bylaw. Council could theoretically reject the bylaw with a simple majority vote when it is brought forward in the fall, but Brown said such a rejection “would be unprecedented.”

How did this happen so suddenly?

Unlike the federal and provincial legislatures, which take months to turn an idea into law, council regularly makes policy changes on the fly.

Most major proposals are first studied by city staff and addressed by a council committee. But once a proposal is brought to a meeting of the whole council, any councillor can propose an amendment to the policy in question — and have the amendment decided upon once and for all on that same day.

“That’s a serious flaw with the city. Any councillor can stand up and make a motion and away you go. There should be some sort of process before you make those kinds of decisions,” said Gary Sands, vice-president of the Canadian Federation of Independent Grocers.

“Usually it goes to committee and people get the opportunity to have their say,” Sands said. “We’re supposed to be the voice for our members, and I’m getting calls saying, ‘Where did this come from?’ Our members had no opportunity to be heard.”

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